Decision Content
R v Lomen, 2019 NWTSC 11 S-1-CR-2019-000012
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
SELENA LOMEN
_________________________________________________________ Transcript of the Decision on Bail Hearing of The Honourable Justice L.A. Charbonneau, sitting in Yellowknife, in the Northwest Territories, on the 1st day of March, 2019.
_________________________________________________________ APPEARANCES:
Mr. A. Godfrey: Counsel for the Crown
Mr. P. Harte: Counsel for the Accused
(Charges under s. 235(1) of the Criminal Code)
There is a ban on the publication , broadcast or transmission of the evidence taken , the information given or the representations made and the reasons for decision until such time as the trial has concluded pursuant to sections 517 & 522 ( 5 ) of the Criminal Code .
1 THE COURT: Just as a reminder, this is a
2 bail application in a case where there is a judge
3 and jury election; and as such, there is a
4 publication ban in effect that covers the
5 evidence presented at the hearing, the
6 submissions made, any information provided during
7 the hearing, as well as these reasons for a
8 decision. And that ban will be in effect until
9 the end of the trial pursuant to Sections 517 and
10 522(5) of the Criminal Code.
11 The accused faces a charge of second-degree
12 murder following the death of Danny Klondike in
13 Fort Liard on October 28th, 2018. She now seeks
14 to be released on a recognizance with a number of
15 conditions.
16 Under the release plan, she would go live
17 with her mother and sister at her sister's house
18 in Fort Nelson, British Columbia. She proposes
19 to be bound by several conditions including house
20 arrest, a limited ability to leave the house when
21 in the presence of her sureties, a complete
22 abstention from consuming alcohol, and various
23 other conditions.
24 The Crown acknowledges that the plan is as
25 strong as it could be. The Crown having heard,
26 as I did, the two proposed sureties testify at
27 the hearing, acknowledges fairly and reasonably,
1 in my view, that they both appear to be suitable
2 sureties. They appear to understand their
3 responsibilities, and there is no reason to think
4 they would not faithfully discharge their
5 obligations as sureties.
6 Both of them testified that they do not use
7 alcohol. The house where it is proposed the
8 accused would live would be a non-alcohol home.
9 And these, of course, are things that the Crown
10 acknowledges the sureties would continue to
11 enforce, or at least there is no reason to think
12 they would not. Despite this, the Crown opposes
13 release, and that opposition is based solely on
14 the third ground of detention.
15 I will say at the outset that I share the
16 Crown's view that any concerns about releasing
17 the accused that might arise under the first or
18 second ground are addressed through the proposed
19 release plan.
20 The first ground is concerned with whether
21 detention is necessary to ensure that an accused
22 will attend court to face the charge. Although
23 Fort Nelson is outside the Northwest Territories,
24 it is a few hours' drive from Fort Liard. It is
25 clear from the evidence that there are regular
26 comings and goings between Fort Liard and Fort
27 Nelson. The accused would be living with two
1 family members, and her ties are with this
2 jurisdiction.
3 Although she faces a very serious charge and
4 the potential consequences of being convicted may
5 give rise to a temptation to try to avoid facing
6 these proceedings, I am satisfied that,
7 realistically speaking, she does not present a
8 true flight risk and that her detention is not
9 necessary on this ground.
10 The second grounds of detention are
11 concerned with the protection of the public
12 including the existence of a substantial
13 likelihood that the accused will commit a
14 criminal offence or interfere with the
15 administration of justice if released.
16 In this case, the seriousness of the
17 allegations and charge obviously raise some
18 public safety concerns as any serious alleged
19 crime of violence would; however, the accused
20 does not have a criminal record. There is no
21 evidence of a history of violence on her part nor
22 anything to suggest that she would present a risk
23 to the safety of others if she were on release
24 under the proposed conditions.
25 As for the risk of potential interference
26 with witnesses, there is always the potential for
27 that; but again, there is no history here of
1 breaches of court orders, and with no-contact
2 conditions and the proposed closed supervision
3 from the sureties, I am satisfied also that
4 detention is not necessary to address those
5 concerns.
6 This leaves the third ground of detention.
7 The Criminal Code says that the pretrial
8 detention of a person is justified if the
9 detention is necessary to maintain the public's
10 confidence in the administration of justice
11 having regard to all the circumstances including:
12 (i) the apparent strength of the prosecution’s case,
13 (ii) the gravity of the offence,
(iii) the circumstances surrounding
14 the commission of the offence, including whether a firearm was used,
15 and
(iv) the fact that the accused is
16 liable, on conviction, for a potentially lengthy term of
17 imprisonment.
18 This fourth factor also includes specific terms
19 regarding firearm offences, but they are not
20 engaged here.
21 The Crown takes the position that under the
22 circumstances of this case, no release plan, no
23 matter how strong, can address the concerns under
24 this ground. The defence disagrees and argues
25 that given that the plan contemplates very close
26 supervision by the sureties, the public's
27 confidence in the administration of justice does
1 not necessitate detention.
2 Before turning to the analysis of the third
3 ground of detention and the circumstances of this
4 case, I do want to outline the allegations that
5 were put forward by the Crown counsel at the bail
6 hearing.
7 The deceased, Danny Klondike, was at the
8 time of his death in a common-law relationship
9 with the accused. They have a child who I am
10 told was two years old at the time of his death.
11 On the night of these events, the accused
12 and Mr. Klondike were going to a Halloween party.
13 The accused asked Rita Duntra to babysit and
14 Ms. Duntra agreed. She went to their house at
15 around 8:40 p.m. The accused and Mr. Klondike
16 left a short time after that to go to the party.
17 Ms. Duntra says that the accused came back a few
18 hours later, got a mickey from the house, and
19 left again. She says Mr. Klondike returned to
20 the residence at about 1:30 a.m., alone. He told
21 Ms. Duntra that the accused was mad at him.
22 According to Ms. Duntra, Mr. Klondike was
23 drunk. She helped him take off his jacket and
24 his hat. She says the accused returned home at
25 4:00 a.m. At that point, Mr. Klondike and the
26 baby were sleeping on the floor. The accused
27 walked in and asked Ms. Duntra to come outside
1 because she wanted to talk to her. Ms. Duntra
2 came outside.
3 The accused talked to her about the fact
4 that Mr. Klondike had had a baby with another
5 woman. This was apparently a lot of years
6 earlier, and the woman in question has been
7 deceased for some time. Ms. Duntra told the
8 accused that this was a long time ago, and she
9 should not worry about it.
10 The accused eventually said she could now go
11 home. Ms. Duntra told her to just let
12 Mr. Klondike sleep. The accused said she would
13 just go to sleep, and she went inside.
14 Ms. Duntra heard the door lock. About a half
15 hour later, there was a knock on the door at
16 Ms. Duntra's residence. She heard the accused
17 talking to Ms. Duntra's spouse. There was
18 nothing specific alleged at the hearing about the
19 evidence or the anticipated evidence of
20 Ms. Duntra's spouse.
21 Francine Kotchea and Douglas Bertrand lived
22 next door to the accused and Mr. Klondike at the
23 time of these events. Ms. Kotchea says she had
24 been sleeping on the couch and woke at 4:00 a.m.
25 to someone banging on a door, not hers. She got
26 up but did not see anyone and went to bed.
27 Then, after 5 to 15 minutes of silence, she
1 heard banging on her door. The accused was at
2 her door. She said, "Francine, I stabbed Danny.
3 Call the health centre." The accused was covered
4 in blood. She appeared to be under the influence
5 of alcohol.
6 Ms. Kotchea says her spouse, Mr. Bertrand,
7 went next door to check on Mr. Klondike. He
8 returned shortly thereafter carrying the
9 accused's child.
10 Mr. Bertrand is expected to say he heard
11 banging at the neighbour's door that night. He
12 saw shadows and heard a woman's voice. There was
13 then a knock at his door. This is when the
14 accused told he and his wife what had happened.
15 Mr. Bertrand went over to the accused's
16 house. He found Mr. Klondike on the couch.
17 There was blood everywhere on him, on the floor,
18 and on the child. Mr. Bertrand believed that
19 Mr. Klondike was unconscious. Mr. Bertrand could
20 see a wound but did not want to touch anything,
21 so he took the child back to his house and asked
22 his wife to call the police.
23 He then returned to Mr. Klondike's house.
24 Mr. Klondike was now on the floor. It appeared
25 to Mr. Bertrand that Mr. Klondike had slid on the
26 floor. Mr. Bertrand could hear Mr. Klondike
27 breathing. He placed a jacket under his head in
1 the hopes it would help him breathe. He left
2 again to see if his wife had called the police
3 and ran into another neighbour outside. They
4 went back in to check on Mr. Klondike and saw
5 that he appeared to have died. They put a jacket
6 on him.
7 Another witness, Margaret Klondike, is the
8 deceased's sister. She is expected to testify
9 that that night she had seen Mr. Klondike at the
10 Halloween party, and he had told her that the
11 accused was mad at him, and she had taken off
12 from the party. Ms. Klondike told her brother
13 just to have some fun.
14 Later on that night, she was sleeping and
15 heard banging on her door. She got up and saw
16 the accused sitting on her front steps. The
17 accused was covered in blood. The accused told
18 her, "I think I killed your brother." She told
19 the accused not to lie to her. There was an
20 exchange that followed between them.
21 This witness is expected to testify that the
22 accused made a number of utterances to her during
23 their exchange, words to the effect, "He's at the
24 house"; "I killed him"; "I may have killed him";
25 "I think I killed him." This witness says the
26 accused eventually left her place and walked in
27 the direction of the RCMP detachment.
1 The RCMP received the phone call from
2 Ms. Kotchea, the complainant, at 4:55 a.m. My
3 understanding from what I was told is that the
4 local members were off duty and had to be
5 contacted and made aware of this through the
6 RCMP's dispatch system. Officers got ready to
7 respond to the call. Two of them attended the
8 accused's house at 5:30 a.m. By then, there were
9 several people there. A local nurse also
10 attended. Mr. Klondike was pronounced dead.
11 In the meantime, another officer was at the
12 detachment getting ready to go and assist his
13 colleagues. He was aware of the nature of the
14 complaint they were responding to. While he was
15 getting ready, there was a knock at the
16 detachment door. He answered. It was the
17 accused at the front door. She was covered in
18 blood. She said, "I killed him." He placed her
19 under arrest.
20 Members of the Major Crimes Unit attended
21 Fort Liard later that day to assist with this
22 investigation. One of their members took a
23 warned statement from the accused. In that
24 statement, she indicates that she remembers that
25 Mr. Klondike made her mad that night; she
26 remembers walking around being mad; she said she
27 got home to a locked door; she said she
1 remembered sitting on the floor and being mad;
2 she does not remember why or how she stabbed
3 Mr. Klondike but thinks she stabbed him once.
4 The preliminary results from the autopsy
5 conducted on Mr. Klondike's body is that the
6 cause of death was a stab wound to the heart.
7 Those were the allegations conveyed to me by
8 the Crown. Defence counsel mentioned, as an
9 additional fact which was not disputed by the
10 Crown, that the deceased has a conviction from
11 January 2018 for assault on the accused back in
12 October 2017. He received a discharge as a
13 sentence for that.
14 The accused is charged with second-degree
15 murder. Her election is judge and jury. The
16 matter is currently set for preliminary hearing
17 in June. Three days have been set aside in Fort
18 Liard, and I am told there may be an additional
19 sitting day in Hay River depending on the results
20 of blood spatter analysis that is underway.
21 There is no dispute about the legal
22 framework that applies when release is opposed on
23 the third ground of detention. That framework
24 can be taken directly out of the relatively
25 recent decision of the Supreme Court of Canada in
26 R v St-Cloud, 2015 SCC 27.
27 Prior to that decision being rendered,
1 jurisprudence interpreting the third ground of
2 detention had developed, but the Supreme Court
3 said in St-Cloud that some of the directions that
4 the jurisprudence had taken were in error.
5 The Supreme Court set out a comprehensive
6 legal framework that applies when this ground of
7 detention is invoked. I am not going to repeat
8 here everything the Supreme Court said on that
9 topic. There is a very helpful summary of the
10 principles at paragraph 87 of the decision.
11 I would simply note the following for
12 today's purposes: The third ground of detention
13 is a standalone ground. It is not a residual
14 ground. It is also not a ground that can only be
15 relied on in exceptional circumstances or when
16 crimes appear unexplainable. Those types of
17 thresholds had been used in earlier
18 jurisprudence, but the Supreme Court set them
19 aside.
20 The four factors that are listed in the
21 section of the Code are not exhaustive. These
22 factors must all be weighed as well as other
23 factors the Court may find relevant. No single
24 factor or circumstance is determinative. And
25 even when all four listed factors point towards
26 detention, that does not necessarily mean that
27 detention should be ordered. There is nothing
1 automatic about how this ground for detention is
2 to be applied.
3 The Court must consider not only whether
4 release would cause the public to lose confidence
5 in the administration of justice, but also
6 whether detention would result in that type of
7 loss of confidence.
8 And when the judge considers the public
9 whose confidence in the administration of justice
10 must be considered, it must consider the
11 perspective of a reasonable person properly
12 informed about the philosophy of bail provisions
13 and fundamental Charter values such as the
14 presumption of innocence and the constitutionally
15 protected right to reasonable bail. But the
16 Court must not consider the matter from the
17 perspective of a legal expert.
18 At paragraph 88 of St-Cloud, the Supreme
19 Court said:
20 In conclusion, if the crime is serious or very violent, if there is
21 overwhelming evidence against the accused and if the victim or victims
22 were vulnerable, pre-trial detention will usually be ordered.
23
24 I now turn to the application of those
25 principles to this case. Dealing first with the
26 apparent strength of the prosecution's case, I
27 note, as I must, that the accused benefits from
1 the presumption of innocence. Courts must never
2 lose sight of this when dealing with pretrial
3 bail.
4 At the same time, one of the factors that I
5 am required to consider is the strength of the
6 prosecution's case; and based on the allegations
7 before me at this stage, the Crown appears to
8 have an overwhelmingly strong case on at least a
9 charge of manslaughter.
10 As to the identity of the person who
11 inflicted the injury to Mr. Klondike, there is
12 strong circumstantial evidence that it was the
13 accused. Among other things, this comes from the
14 timeline. Ms. Duntra has her returning to the
15 house at 4:00 a.m. After their conversation, she
16 left, heard the door being locked, leaving the
17 accused alone in the house with Mr. Klondike and
18 their child.
19 Mr. Bertrand said he heard banging on a door
20 at 4:30 a.m., and it was about 15 minutes later
21 that the accused came to his door. The call made
22 by Ms. Kotchea was received at 4:55 a.m., as I've
23 already mentioned. So there is a relatively
24 short time span between the time when the accused
25 returned home, at which point Mr. Klondike was
26 fine, and when the accused went to ask
27 Ms. Kotchea to call the health centre.
1 It is roughly 45 minutes not counting the
2 time she and Ms. Duntra talked outside the house.
3 Acknowledging that these timelines are probably
4 not very precise because people are not
5 constantly looking at their watches, that is
6 still a relatively short timeframe.
7 Aside from the timeline, which suggests
8 exclusive opportunity, there is obviously the
9 fact that the accused was covered in blood when
10 she knocked on the door at the Kotchea-Bertrand
11 home and that she was seen covered in blood by
12 other witnesses after that.
13 Next, of course, there is evidence that she
14 made admissions to various people about what she
15 did: She told her neighbour; she told the
16 deceased's sister; she told a police officer who
17 opened the door to her at the detachment before
18 he had a chance to even ask her anything. So
19 even if there end up being issues with the
20 admissibility of the warned statement she later
21 gave to the police, there are, at this point,
22 three different witnesses (and no indication any
23 of them were intoxicated) who are expected to say
24 that the accused basically admitted to them that
25 she stabbed Mr. Klondike.
26 On the issue of intent, on the allegations
27 before me, it is true there is no direct evidence
1 as to what happened between the time the accused
2 went into that house and when Mr. Klondike was
3 stabbed. Even if the accused's warned statement
4 is admissible, it does not include much details
5 as to what happened as she told police she did
6 not remember how or why she stabbed him. The
7 absence of evidence can give rise to a reasonable
8 doubt on any element of a charge including
9 intent. Intoxication is another factor that may
10 be a live issue in this case and have a bearing
11 on the proof of intent.
12 At the same time, other aspects of the
13 evidence, circumstantial in nature, will also
14 have to be considered by the trier of facts and
15 may assist the Crown in proving intent. For
16 example: evidence suggesting that the accused was
17 angry at the deceased; her conversation with
18 Ms. Duntra outside the house which suggests that
19 she may have been brooding about Ms. Klondike's
20 involvement with another woman in the past very
21 shortly before Mr. Klondike was stabbed; the
22 location of the stab wound; that the accused was
23 aware enough of what was happening to tell a
24 number of people what she did, including the
25 neighbours who she asked to call the health
26 centre; and that after her stop at the deceased's
27 sister's house, she effectively turned herself
1 into the custody of the police.
2 I want to say a word about self-defence
3 because it was discussed briefly during
4 submissions last week. The reason I raised it
5 then is that it was mentioned in the written
6 submissions filed by counsel, at paragraph 20.
7 On the record before me, there is nothing at this
8 point that gives an air of reality to that
9 defence. This could change at trial, obviously;
10 but at this point, I have to assess the case as
11 it presents at this stage.
12 In conclusion on the strength of the Crown's
13 case, it appears to me that this is an
14 overwhelming case on manslaughter at least and
15 certainly not a particularly weak case on the
16 charge of murder. I bear in mind that not all
17 the evidence is available at this stage and also
18 that it has not been tested in any way. That is
19 the nature of a bail hearing. I heard that there
20 is a blood spatter expert report pending, and
21 there may be other things, many other things,
22 that could change the fact pattern that will be
23 presented at trial. But at this stage, to the
24 extent that the Criminal Code requires me to
25 consider the strength of the Crown's case, it
26 must be acknowledged that that case is strong.
27 The next factor is the gravity of the
1 offence. Murder is obviously a very serious
2 offence. I do not think more needs to be said
3 about that. And even if the Crown's case were to
4 fall short on the issue of intent, and the
5 accused were to be found guilty of manslaughter
6 only; that, too, is a serious offence; and on the
7 allegations before me, there would be a number of
8 aggravating features.
9 The next factor is the circumstances of the
10 commission of the offence. Section 515(10)(c)
11 makes specific reference to the use of firearms
12 and the description of that factor. Here, no
13 firearm was used. But there are other aspects of
14 the circumstances that are aggravating: the fact
15 that a knife was used, the fact that this
16 occurred in the context of a domestic
17 relationship, the fact that it happened in the
18 presence of a young child.
19 Another factor is that, on the allegations
20 before me, Mr. Klondike was in a vulnerable
21 position at the time of the attack. This stems
22 from elements of circumstantial evidence before
23 me; Ms. Duntra's evidence that he was intoxicated
24 when he came home to the point that she helped
25 him take his coat off and his hat; her evidence
26 that he and the baby were sleeping on the floor
27 when the accused returned to the home; and that
1 in her conversation with the accused outside the
2 house, she told her, among other things, to just
3 let him sleep. This evidence suggests that
4 Mr. Klondike was in a vulnerable position when
5 this happened, and that is part of the
6 circumstances of the commission of the offence
7 that must, under this factor, be taken into
8 account.
9 The last factor is the potential penalty
10 that the accused is liable to on conviction. On
11 murder, the punishment is life with a minimum of
12 ten years without eligibility for parole. Even
13 if convicted of the lesser offence of
14 manslaughter, under the circumstances of this
15 case, the accused would still face a lengthy term
16 of imprisonment. The four factors listed at
17 Section 515(10)(c) all point towards detention
18 being necessary. That is not determinative, as I
19 have already mentioned. Other factors must be
20 considered as well including the absence of the
21 criminal record and the strength of the release
22 plan.
23 The Supreme Court has said that in
24 considering the public whose confidence in the
25 administration of justice must be maintained, as
26 I mentioned already, the Court is to consider a
27 well-informed, dispassionate member of the
1 public, not someone prone to an emotional
2 response. The members of the deceased's family
3 can be expected to have a very strong emotional
4 reaction to what happened and to have a strong
5 emotional reaction if the accused were to be
6 released.
7 I heard through the Crown that they are very
8 concerned about the prospect of the accused being
9 released. That is not surprising, and as the
10 Crown acknowledges, it is not at all
11 determinative. People who are emotionally
12 invested in the case are definitely not the
13 target public that St-Cloud instructs me to think
14 about when making an assessment pursuant to the
15 third ground of detention; otherwise, no one
16 would ever be released on bail on a homicide case
17 or any case where someone has been seriously
18 harmed. As I said, what I am required to
19 consider are the views of the well-informed,
20 thoughtful, and balanced objective member of the
21 public.
22 I accept the sureties would be good
23 sureties, that they are honest and well intended,
24 and that they would carry out their duties. But
25 in some cases, that is just not enough; and
26 unfortunately, I have concluded in this case that
27 it is not enough. This case meets the
1 description of the Supreme Court of Canada at
2 paragraph 88 in St-Cloud that I quoted earlier:
3 it is a serious and violent offence; there is
4 overwhelming evidence against the accused; and
5 the victim was attacked in circumstances when he
6 was vulnerable. In addition, this occurred in a
7 domestic context and in the presence of a young
8 child.
9 On balance, I am satisfied that the
10 accused's detention is necessary to maintain
11 public confidence in the administration of
12 justice. I think that well-informed and
13 dispassionate members of the public would lose
14 confidence in the administration of justice if a
15 person, facing such a serious charge supported by
16 strong evidence and potentially facing such a
17 severe penalty if convicted, were to be released
18 pending trial. And for those reasons, the
19 application for release is dismissed.
20 There will be a new detention order in
21 Form 8 Warrant of Committal issued by this Court.
22 It will be endorsed with a direction that the
23 accused is prohibited from communicating with the
24 individuals that will be listed on the appendix.
25 Mr. Godfrey, we discussed this the last time
26 we were in court. The accused must know who she
27 is prohibited from contacting, so if you have
1 those names, I would ask you to read them into
2 the record now and to later provide that list to
3 the clerk so that it can be included as an
4 appendix to the Warrant of Committal.
5 MR. GODFREY: Certainly, Your Honour. If I
6 could just have a minute to consult with my
7 friend.
8 THE COURT: Go ahead.
9 MR. GODFREY: Your Honour, it's quite a
10 list: Francine Kotchea, Douglas Bertrand,
11 Margaret Klondike, Rita Duntra, Grace Berreault,
12 Jolan Kotchea, Chase Berrault, Dolan Klondike,
13 Robert Duntra, Patrick Kotchea, Ross Duntra,
14 Dustin Hope, Clint McLeod, Connie Bertrand,
15 Hilary Deneron, Ryan Berreault, April Bertrand,
16 Frank Deshenes, Jeanine Gaulian.
17 THE COURT: Thank you.
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1 CERTIFICATE OF TRANSCRIPT
2
3 I, the undersigned, hereby certify that the
4 foregoing transcribed pages are a complete and
5 accurate transcript of the digitally recorded
6 proceedings taken herein to the best of my skill and.
7 ability.
8 Dated at the City of Edmonton, Province of
9 Alberta, this 8th day of March, 2019.
10
11 Certified Pursuant to Rule 723
12 Of the Rules of Court
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17 Adrianna Mazzocca, CSR(A)
18 Court Reporter
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